(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)
In its brief, Defendant cites the case of Kasparian v. Avalonbay Communities. Inc. (2007) 156 Cal.App. 4th 11, 66 Cal.Rptr. 3d 885 of the proposition that a court may decide that a sidewalk defect is trivial. The Kasparian decision is instructive. There the plaintiff sued his landlord for negligence and premises liability, alleged that she tripped and fell over a recessed drain on a walkway. The trial court granted the defendant’s motion for summary judgment on the ground that the recessed drain was, as a matter of law, an obvious and trivial defect, negating any duty of care by the defendant-landlord. The tenant-plaintiff appealed, and the court of appeal reversed the judgment on the ground that reasonable minds could differ based upon reviewing the photographs depicting the defective condition of the walkway, where the defect was trivial or open, or obvious.
Likewise, in the instant case, reasonable minds could differ on whether the combination of the upraised portion of pavers with a gap between the sections of pavers constitutes a dangerous property condition, or a trivial defect. Remember, we have two defects in the sidewalk where Plaintiff Judy Brown tripped and fell.
Defendant also cites the case of Caloroso v. Hathaway (2004) 122 Cal.App. 4th 922, 19 Cal.Rptr. 3d 254 in its brief, for the proposition that the defective condition in the instant case was trivial as a matter of law. However, Caloroso is distinguishable on its facts. There, the issue was whether a slight crack in a walkway was a trivial defect.
The photos submitted by both parties, in the summary judgment motion, demonstrate that the crack was minor. What distinguishes Caloroso from the instant case is that in Caloroso the sole issue was whether the crack in the pavement was minor; and, in Caloroso, there was only one defect (elevation) not an elevation plus a gap in the pavement, as in Plaintiff’s case. (See Part 5 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.